Tuesday, December 02, 2008

The European Court of Human Rights gave an important decision today in KU v. Finland, dealing with the issue of whether states are obliged to have laws which allow for the identification of internet wrongdoers. In short, according to the court the answer is yes - national laws must "provide the framework for reconciling the various claims which compete for protection in this context" and a national law which gives an absolute guarantee of anonymity and confidentiality of communication may breach the rights of persons who are affected by online wrongdoing.

In this case the applicant, who was then aged 12, was the victim of a fake personal ad giving his name, phone number, date of birth and his picture and claiming that he was looking for a homosexual relationship. The applicant learned of this when he received a phone call from an older man. Although that man was eventually identified and charged with an offence the person who placed the ad remained unidentified. The police sought to find out (from the ISP) the name of the subscriber behind the dynamic IP address used to place the ad. The service provider however was advised that it was bound by the duty of the confidentiality of telecommunications and could not reveal the user's identity. The Finnish courts ultimately agreed, holding that the law as it stood provided for this information to be revealed only in respect of specified criminal offences - and although defamation ("calumny") was a criminal offence, it was not a sufficiently serious offence to fall within the scope of the legislation.

The applicant applied to the European Court of Human Rights, claiming that the fake ad constituted a violation of his right to a private life under Art. 8 of the ECHR, and that as he could not identify the person responsible he had been denied an effective remedy for that violation under Art. 13 ECHR.

The court held that Finland was in breach of its obligations under Article 8, in that it had not provided an effective criminal sanction for the violation of the applicant's rights. The fact that a remedy was available against a third party - the service provider - was not sufficient. This did not mean that the identity of the person responsible would have to be revealed in every case - but national law must provide a framework within which a decision could be made balancing the rights of a victim with the considerations of freedom of expression and confidentiality of communications. As the national law at the relevant time failed to do this (prohibiting disclosure except in a narrow class of cases) it was in breach of Article 8. Consequently the court did not go on to consider the issue under Article 13. The relevant passages are worth quoting in full:

45. The Court considers that, while this case might not attain the seriousness of X and Y v. the Netherlands, where a breach of Article 8 arose from the lack of an effective criminal sanction for the rape of a handicapped girl, it cannot be treated as trivial. The act was criminal, involved a minor and made him a target for approaches by paedophiles...46. The Government conceded that at the time the operator of the server could not be ordered to provide information identifying the offender. They argued that protection was provided by the mere existence of the criminal offence of calumny and by the possibility of bringing criminal charges or an action for damages against the server operator. As to the former, the Court notes that the existence of an offence has limited deterrent effects if there is no means to identify the actual offender and to bring him to justice...47. As to the Government's argument that the applicant had the possibility to obtain damages from a third party, namely the service provider, the Court considers that it was not sufficient in the circumstances of this case. It is plain that both the public interest and the protection of the interests of victims of crimes committed against their physical or psychological well-being require the availability of a remedy enabling the actual offender to be identified and brought to justice, in the instant case the person who placed the advertisement in the applicant's name, and the victim to obtain financial reparation from him.48. The Court accepts that in view of the difficulties involved in policing modern societies, a positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities or, as in this case, the legislator. Another relevant consideration is the need to ensure that powers to control, prevent and investigate crime are exercised in a manner which fully respects the due process and other guarantees which legitimately place restraints on crime investigation and bringing offenders to justice, including the guarantees contained in Articles 8 and 10 of the Convention, guarantees which offenders themselves can rely on. The Court is sensitive to the Government's argument that any legislative shortcoming should be seen in its social context at the time. The Court notes at the same time that the relevant incident took place in 1999, that is, at a time when it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes (see paragraphs 22 and 24 above). Also the widespread problem of child sexual abuse had become well-known over the preceding decade. Therefore, it cannot be said that the respondent Government did not have the opportunity to put in place a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet.49. The Court considers that practical and effective protection of the applicant required that effective steps be taken to identify and prosecute the perpetrator, that is, the person who placed the advertisement. In the instant case such protection was not afforded. An effective investigation could never be launched because of an overriding requirement of confidentiality. Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the Internet can attract the protection of Articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. Such framework was not however in place at the material time, with the result that Finland's positive obligation with respect to the applicant could not be discharged.

When I blogged about this case before, I mentioned concerns that it might require states to introduce much wider rules to identify internet users. Is it likely to have this effect? While it's difficult to make an immediate assessment, there are factors in the judgment which could go either way. The court points out that it is dealing with a "grave" criminal offence, which leaves open the question of whether the reasoning would apply to less serious offences or to civil matters only. It also limits itself to requiring a national balancing framework between the rights of an alleged victim and the general rights of privacy in communications and freedom of expression - presumably within that framework states will enjoy a significant margin of appreciation. On the other hand, it rejects the argument that other systems (such as notice and takedown or intermediary liability) can suffice, insisting instead on requiring identification of users. It also focuses on the "ability of the victim to obtain financial reparation", which seems to extend the reasoning to civil matters also. On the whole, the judgment raises more questions than it answers, and these issues will need to be addressed in future cases.